- (1.) THIS is a defendant's appeal arising out of a suit for ejectment from the premises in question and for recovery of arrears of rent and mesne profits.
(2.) THE case of the plaintiffs was that the defendant-appellant had occupied the accommodation in question as a tenant in the year 1956 agreeing to pay rent at the rate of Rs. 250 per annum and water charges at the rate of Rs. 5/62.00. The rate of rent was subsequently enhanced to Rs. 350.00 per annum with effect from 1st January, 1962. It was alleged that the premises belonged to the partnership firm Pooran Chand and Sons, the plaintiff No. 1 in which the plaintiffs 2 to 7 were partners. The said accommodation was said to have been constructed after 1st January, 1951. The plaintiffs terminated the tenancy of the defendant by notice dated 25th May, 1963, and as he failed to comply with the same, a suit for the aforesaid reliefs was filed. The defendant contested the suit on a number of grounds. He alleged that the accommodation in question had been constructed prior to 1st January, 1951, and as such the suit was barred by the provisions of the U. P. Act III of 1947. He also denied that the rate of rent was enhanced to Rs. 350. The trial court held that the entire disputed accommodation was not constructed after 1st January, 1951, that the rate of rent was not enhanced from Rs. 250 per annum to Rs. 350 per annum, that the tenancy was not annual but monthly, that nothing was due from the defendant against rent for the year 1962 and that the suit was barred by the provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act. It also, held that the defendant was liable to pay water charges at the rate of Rs. 2.50 p. per month and that nothing was outstanding against water charges. On those findings the suit was dismissed. Aggrieved by that decision the plaintiffs preferred an appeal. The appellate court below affirmed the finding of the trial court to the effect that the rate of rent was not enhanced from Rs. 250 per annum to Rs. 350 per annum. It was held that the U. P. (Temporary) Control of Rent and Eviction Act III of 1947 did not apply to the case. It was observed that the premises in dispute consisted of a mere room in 1936. Subsequently a glazed verandah, a kitchen, a bath room and a latrine were added to that room after 1951. These major constructions made after 1951 changed the nature of the accommodation and, therefore, the U. P. Act III of 1947 would not apply to any part of it. The appeal was, therefore, partly allowed. The plaintiffs' suit for Rs. 172 being the rent for the period from 1st January, 1963 to 27th June, 1963 and mesne profits at the same rate from 28th June, 1963, till the date of possession on payment of proper court-fee was decreed. Aggrieved, the defendant has come up to this Court in second appeal.
(3.) LEARNED counsel for the respondents at the outset raised a preliminary objection to the maintainability of the appeal. He pointed out that Lala Mohan Lal Agarwal, plaintiff No. 2-respondent, had died during the pendency of this appeal and as all his legal heirs were not substituted the appeal abated as against him. It was urged that the appeal, therefore, was not properly constituted and could not be proceeded with and that it had abated as a whole. The learned counsel for the appellants did not dispute the fact that the plaintiff no. 2 had died during the pendency of this appeal and no application for bringing on record his legal representatives was filed within the period of limitation prescribed for it. He, however, submitted that as the suit was filed by a partnership firm M/s. Pooran Chand and Sons, the plaintiff No. 1 in which the plaintiffs Nos. 2 to 6 were partners, it was not necessary to substitute the legal heirs of Mohan Lal deceased in the appeal, in view of the provisions of Rule 4 of Order XXX of the Code of Civil Procedure. The learned counsel for the respondents, however, submitted that the suit was not only filed by the firm M/s. Pooran Chand and Sons but was also filed by its partners, as plaintiffs 2 to 6; hence the provisions of Rule 4 of Order XXX did not apply and as the decree passed by the appellate court below was to the benefit of all the plaintiffs and was, therefore, a joint decree, the appeal has abated in its entirety.;